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Failure to Affirmatively Demonstrate When the Area Where the Slip and Fall Occurred Was Last Inspected and Failure to Affirmatively Demonstrate the Condition Was a “Latent Defect” Precluded Summary Judgment—Defendants Failed to Affirmatively Demonstrate the Absence of Constructive Notice of the Condition

The Second Department determined Supreme Court properly denied defendants’ motion for summary judgment in a slip and fall case, in another illustration of the need to eliminate every possible theory of recovery in order to be awarded summary judgment.  Here it was alleged plaintiff slipped and fell on a loose piece of slate. Defendants demonstrated the absence of actual notice, but did not present evidence of when the area was last inspected prior to the fall and did not demonstrate the defect was “latent” (which would have demonstrated the absence of constructive notice):

“To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [the defendants] to discover and remedy it” … . “When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed” … . In demonstrating that it lacked constructive notice of a visible and apparent defect, “the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff” slipped and fell … .

Here, the deposition testimony … established, prima facie, that the defendants did not create or have actual notice of the allegedly loose piece of slate on the slate stone landing which allegedly caused the plaintiff Patrick Bergin to fall … . However, in the absence of any evidence as to when the defendants last inspected the landing before the accident …, or that the allegedly loose piece of slate on the landing was a latent defect that could not have been discovered upon a reasonable inspection … , the defendants failed to establish, prima facie, that they lacked constructive notice of the allegedly loose piece of slate on the landing … . Bergin v Golshani, 2015 NY Slip Op 06103, 2nd Dept 7-15-15

 

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